Mental Health and Immigrant Detainees in the United States: Competency and Self-Representation

Most immigrant detainees held in U.S. Immigration and Customs Enforcement (ICE) facilities do not have legal representation, because immigration proceedings are a matter of civil, not criminal, law. In 2005, Mr. Franco, an immigrant from Mexico with an IQ between 35 and 55, was found incompetent to stand trial, but was not appointed an attorney for his immigration proceedings. This failure led to a class action lawsuit, known as the Franco litigation, and in April 2013, a federal judge ordered the U.S. government to provide legal representation for immigrant detainees in California, Arizona, and Washington who are incompetent to represent themselves due to a mental disorder or defect. This development has implications for forensic evaluators, because there is likely to be an increase in the number of competency examinations requested by courts for immigrant detainees. Furthermore, forensic evaluators must understand that an evaluation for competency of an immigrant detainee includes both the Dusky criteria and capacity for self-representation. In this article, we explore the legal context and ethics concerns related to the Franco litigation.